The following article by Amber Phillips was posted on the Washington Post website April 11, 2018:
In the short time since President Trump found out the FBI raided his private lawyer’s home and office, he sure seems to have been seriously considering firing someone involved.
One person directly in Trump’s line of fire is Rod J. Rosenstein, the deputy attorney general at the Justice Department. Rosenstein is arguably more endangered than special counsel Robert S. Mueller III or Attorney General Jeff Sessions, for a few reasons:
- Rosenstein set up the special counsel investigation into Russia in the first place.
- The president is allowed to fire Rosenstein. (Under the rule book, only Rosenstein can fire Mueller, even though the White House tried to suggest otherwise Tuesday.)
- The New York Times and Washington Post reported that Rosenstein signed off on the FBI raid of Michael Cohen’s home and office.
- If Trump fires Rosenstein, he could nominate someone in his place who would be willing to shut down or blunt both the Russia investigation and the FBI investigation into his lawyer.
But while firing Rosenstein might not cause a constitutional crisis the way firing Mueller could, it would cause a political one. That’s because legal experts say Trump doesn’t have a solid reason for firing his deputy attorney general.
In the absence of one, Congress could view the firing as a pretext for Trump getting rid of not one but two federal investigations encircling him. That could accelerate impeachment talks, said Cornell Law Vice Dean Jens David Ohlin, “especially if the Democrats gain control of the House after the midterms.”
Trump seems upset enough to be considering firing someone anyway. On Wednesday, he tweeted that Mueller and Rosenstein are “conflicted.”
Here’s how he might try to justify firing Rosenstein — and why the most likely justifications he could offer fall flat.
Trump could say: Rosenstein authorized a raid that I think is unlawful
Trump seemed to have a sense of Rosenstein’s involvement in the raid of his personal lawyer even before that news broke. After going after Mueller and Sessions on Monday night in public comments about how unfair the raid is, Trump seemed to be setting up to criticize Rosenstein, too.
But: Experts say the president’s legal opinion doesn’t matter nearly as much as whether Rosenstein followed the rule of law. Jeffrey Jacobovitz, a white collar lawyer in Washington, points out that the FBI authorized the raid, which a high-level official in the U.S. attorney’s office in New York signed off on, as did a federal judge.
That’s a lot of people serving as checkpoints — and basically all of them, including Rosenstein, are Republicans or Republican appointees. Trump would have to convince his critics that all of these people were in on a conspiracy to get him via his personal lawyer.
The much likelier scenario is that the people whose job it was to look at the evidence against Cohen saw probable case that Cohen might have committed a crime. Rosenstein was just one of many who agreed.
“Investigative steps go in sequences,” said former FBI agent Asha Rangappa. “You can’t get a search warrant until you have an investigation and gather evidence. You can’t execute it until it’s approved by a judge. Everything moves very methodically; one person can’t just choose to do something.”
Trump could say: Rosenstein authorized FBI spying on my former campaign aide
Rosenstein’s name is mentioned in a declassified GOP memo about how the FBI got a warrant to spy on former Trump campaign adviser Carter Page. The memo alleges the FBI made mistakes and was even driven by political bias when it got a secret court to authorize a warrant to spy on Page during the campaign.
Trump approved the GOP memo’s release in February over the FBI’s objections, in part, we reported, to help him build a public argument against how Rosenstein handled the case.
But: Legal experts, Democrats and federal law enforcement officials have all argued the Republican memo was cherry picked to make it seem as if the FBI did something wrong when really it was following the rules.
Plus, Rosenstein wasn’t a part of the original decision to spy on Page. That happened before Rosenstein was in the job. He did sign off on at least one of the applications for a continuing warrant.
But like the Cohen search warrant, Rosenstein was just one of a cascade of people who signed off on it. First the FBI has to prepare an application that former director James B. Comey once described as thick as his wrist. Then agents argue their case in front of federal judges on a secret court. Next, they have to go back to those judges every 90 days or so to argue the warrant is giving them valuable information, said Rangappa.
There are just too many legal and bureaucratic hoops to jump through for Trump to feasibly blame any alleged spy wrongdoing by the FBI on Rosenstein, experts say.
Trump could say: I don’t like you, so you’re fired
President Trump has suggested firing Deputy Attorney General Rod J. Rosenstein, as Republicans launch criticism against the FBI and the special counsel. (Jenny Starrs/The Washington Post)
Trump technically doesn’t need a reason to fire Rosenstein. The president can fire executive officials at any time for any reason. “Trump could fire Rosenstein if he doesn’t like his tie,” said longtime D.C. lawyer Mark Zaid.
The big question is how Republicans in Congress would react if Trump did fire Rosenstein for any reason. We know how Democrats feel: “Mr. President, any attempt to remove Rod J. Rosenstein will create the exact same constitutional crisis as if you fired special counsel Mueller,” Senate Minority Leader Charles E. Schumer (D-N.Y.) warned Trump on the Senate floor Tuesday.
Republicans have not been nearly as vocal about how they’d react. But we saw some defect from Trump after he fired Comey, citing his handling of the Hillary Clinton email investigation.
In the Comey situation, both sides had gripes with the FBI’s Clinton email investigation. Trump’s justifiable arguments for firing Rosenstein are, by comparison, much more flimsy.